Ralph A. Gillett For the Use of Amos Smith v. Sweat

• Decision Date: 31 December 1844
• Citation: 6 Ill. 475,1844 WL 4098,1 Gilman 475
• Parties: RALPH A. GILLETT et al. for the use of AMOS SMITH,v.PETER SWEAT.
• Court: Illinois Supreme Court

1 Gilman 475

6 Ill. 475

1844 WL 4098 (Ill.)

RALPH A. GILLETT et al. for the use of AMOS SMITH,

v.

PETER SWEAT.

Supreme Court of Illinois.

December Term, 1844.

ASSUMPSIT, in the Peoria circuit court, brought by the plaintiffs in error against the defendants in error. The pleadings and evidence are fully set forth in the opinion of the court. The cause was tried at the October term, 1843, before the Hon. JOHN D. CATON and jury. Verdict and judgment for the defendant.

C. BALLANCE, for the plaintiffs in error: The depositions of Gillett & Avery ought not to have been admitted. Schermerhorn v. Schermerhorn, 1 Wend. 119; Supervisors of Chenango v. Birdsall, 4 do. 453; Bates v. Conkling, 10 do. 389; Brown v. Howard, 14 Johns. 122; Van Deusen v. Van Slyck, 15 do. 223; Jackson v. Fryer, 16 do. 193; Parker v. Hanson, 7 Mass. 470; Marsh v. Berry, 7 Cowen 344; The People v. Whipple, 9 do. 707; Smith v. Moore, 3 Scam. 464; Starkie's Ev. 1061, 1062.

The instructions assume, that if the name of Amos Smith was, at any time, in any way connected with the note sued on as a joint and several maker, and has since been detached, the erasure is an alteration which vitiates the note as to the defendant, and that, consequently, he can not be sued upon it. This position is denied, and the following authorities are cited. Chitty on Bills (18th ed.) 204, 206, 345; (7th ed.) 102, 105, and notes; (10th ed.) 185, 186; Bayley on Bills 58, 89, and note; Chitty on Contracts 297; 1 U. S. Dig. 141, 142; Atwood v. Griffin, 12 Eng. Com. Law R. 176.

The instructions also assume that the payment of the note by Smith, though he was the mere security of Sweat, and had not taken it up animo solvendi, was yet an absolute discharge of it, and rendered it so entirely functus officio, that a suit, even in the name of the payees, could not be maintained for any purpose. But see the following authorities. Mechanics' Bank v. Hazard, 13 Johns. 353; Guild v. Eager, 17 Mass. 615; Havens v. Huntington, 8 Cowen 387; Chitty on Bills (7th ed.) 280, 321; Bayley on Bills 213.

E. N. POWELL and W. F. BRYAN, for the defendants in error:

1. The court did not err in admitting the depositions of Gillett & Avery. In the case of Norden v. Williamson, 1 Taun. 378, it is decided that if “the defendant is willing to admit him and the plaintiff is willing to testify,” there can be no objection to admitting the evidence, though it defeats a co-plaintiff. This is fully sustained by the case of Worrall v. Jones, 20 Eng. Com. Law R. where one of the defendants, who had suffered a default, was called by the plaintiff to testify. One of his co-defendants objected, because he was a party to the record, but the court said that “no case has been cited, nor can any be found in which a witness has been refused upon the objection, in the abstract, that he was a party to the suit.” See also, 1 Phil. Ev. 72; 2 do. 142, note 129, 122 and 124. The case of Worrall v. Jones is well worthy of attention on this ground, as the decision was made long after the cases cited from the 4th of Wendell, and 20th of Johns. which were the foundation of the decision of this court in the case of Smith v. Moore, 3 Scam. 462.

2. Supposing the court to have erred in permitting the depositions of Gillett & Avery to be read in evidence, there was abundant proof to the jury on the same point, to authorize them to find for the defendant, and this court will not, on that account, reverse the judgment. Supervisors of Chenango v. Birdsall, 4 Wend. 453; Gardenier v. Tubbs, 21 Wend. 169.

YOUNG, J.

This was an action of assumpsit, commenced by Ralph A. Gillett and Daniel J. Avery, for the use of Amos Smith, against Peter Sweat, in the Peoria circuit court, on the following promissory note, to wit:

“$500. For value received, we jointly and severally, or either of us, promise to pay Gillett & Avery, or bearer, five hundred dollars, one day after date, with use. Sweden, Nov. 14, 1838.

Peter Sweat.”

Plea non assumpsit, and issue, with leave to the defendant to give special matter in evidence. Jury, trial and verdict, and judgment in favor of the defendant for costs.

The bill of exceptions shows, that after the plaintiffs had read the note sued upon in evidence, to the jury, that the defendant offered to read as testimony to the jury, the depositions of Ralph A. Gillett, Daniel J. Avery, Perry Smith, and William Berry; that the plaintiffs objected to the reading of the depositions of Gillett and Avery, for the reason that said witnesses were parties to the record; that the objection was overruled by the court, and the depositions permitted to be read to the jury, and that an exception was taken to the opinion of the court thereon.

The depositions, as read to the jury, are as follows:

1. Ralph A. Gillett deposed, that he did not know that he had any interest in the suit; that he gave his written consent to Amos Smith to use his name in connection with that of Daniel J. Avery in the prosecution of the suit against Peter Sweat upon the note; that he is under no obligation to indemnify Smith in the event of his failure in the suit; that Smith and Sweat together borrowed five hundred dollars from Gillett & Avery, but for whose use he knows not; that they signed their individual names to the note, which was dated November 14, 1838, payable one day after date; that the note attached to the commission is the same note that was executed by Sweat and Smith, and that the name of Smith was signed to it by Smith, at the date of its execution in his presence; that the note was paid by Amos Smith in the spring or fall next after its date; does not know whether Smith and Sweat were partners at that time or not, that since Gillett & Avery parted with the note, it has been altered by cutting off the name of Amos Smith; that Peter Sweat never executed any note, signed by himself alone, to pay money to Gillett & Avery, except said note.

2. Daniel J. Avery deposed, that he did not know that he had any interest in the suit, or in the note sued upon; that he gave his written consent that Amos Smith might use his name in connection with that of Ralph A. Gillett, in the prosecution of a suit for the collection of the note; that he is under no obligation to indemnify Smith if he should fail in the suit; knows nothing personally of the borrowing of the money, or the execution of the note as stated by Gillett; but knows that Gillett & Avery had such a note from the fall of 1838 to the spring of 1839, for five hundred dollars, signed with the individual names of Peter Sweat and Amos Smith, dated Nov. 14, 1838, and payable one day after date; thinks he recollects the note attached to the commission, and that it is the same note referred to; thinks it was paid in the spring of 1839, and that since Gillett & Avery parted with the note, it has been altered by taking therefrom the name of Amos Smith; does not know whether Sweat and Smith were partners or not; and that Sweat never executed any other note to Gillett & Avery for money, either individually or otherwise.

3. Perry Smith deposed, that he knew the parties, plaintiffs and defendant, but knows nothing of the note in question; does not know of its payment, or out of what funds payment was made, or any thing of its alteration by cutting off the name of Amos Smith; that in the fall of 1838, Peter Sweat and Amos Smith bought pork together, but does not know upon what terms; that when they bought pork that fall, they both acted in the business, but can not say whether they were reported to be partners or not.

4. William Berry deposed, that he knew the parties, plaintiffs and defendant; that in the fall of 1838, Peter Sweat and Amos Smith acted together in buying and selling pork, and were reputed to be partners in that business; that he bought a lot of hams from Peter Sweat, but did not know at the time he paid for them, that the money was wanted to pay Gillett & Avery.

Here the defendant closed his testimony.

The plaintiffs then read in evidence to the jury the deposition of Robert Staples, which is as follows:

1. Robert Staple deposed, on the part of the plaintiffs, that he knew the plaintiffs and defendant; that he did not see the note for five hundred dollars, given by Sweat and Smith to Gillett & Avery, in the possession of Amos Smith; that he does not know, but did learn from Amos Smith, that a note answering the description of the one attached to the commission, was signed by Sweat and also by him, the said Smith, as security for the said Sweat, and for Sweat's benefit; and that after said Smith had paid the note, he cut his name therefrom; that he does not know that the said note was given to Gillett & Avery by Sweat and Smith for money borrowed to buy pork; knows nothing of their being partners in buying and selling pork except from report; and that he, deponent, is brother-in-law of Amos Smith.

2. Matthew Taggart was then produced by the plaintiffs, and sworn as a witness, and testified, that he had been a merchant; that it was usual for merchants to sign partnership name, but they sometimes did otherwise.

3. John G. Bryson, also called by the plaintiffs, testified, that he was engaged in the business of merchandise, and that it was usual with merchants to sign their partnership, and not individual names, when they entered into a partnership contract.

Here the plaintiffs closed, and this was all the testimony in the cause.

The defendant then asked the court to instruct the jury as follows, to wit:

1, That if the jury believe from the evidence that the note sued upon has been paid, the plaintiffs can not recover.

2. If they believe from the evidence, that the note has been altered by cutting off the name of one of the makers, since the same was executed, and without the knowledge or consent of the defendant, that they will find for the defendant.

3. That if they believe from the evidence, that Smith was a mere security on the note, the plaintiffs can not recover in this...